I have an employee who works 39 hours but he is planning to regularly work 12 hours in a second job over the weekend. Does his extra job pose a problem to the number of hours he is legally allowed to work?
Technically, you have a responsibility, along with the other employer if the employee obtains other work, to check that he is not working more than the maximum legal limits for working hours in a week. The Working Time Regulations 1998 state that individuals should not work for more than an average of 48 hours per week, generally calculated over a 17-week period.
The Regulations contain an exemption, however, meaning that you can ask employees to sign an opt-out form which effectively removes the 48-hour restriction and allows employees to work for longer in a week. The opt-out form does not apply to the other minimum entitlements provided in the regulations, for example, minimum break entitlement during the working day or weekly rest periods.
The Regulations were effectively a health and safety measure put in place to protect employees’ wellbeing by forcing employers to ensure that they get a minimum amount of rest throughout the year. Some enforcement of the provisions is done by the Health and Safety Executive. However, the power ultimately comes down to the employee who can make the decision to sign an opt-out form and disapply the weekly limit on working hours to themselves. It is unlawful to force an employee to sign an opt-out form, or to dismiss him if he refuses.
You should therefore ask your employee to sign an opt-out agreement to show that you have taken steps to stay within the law. If they refuse to sign the agreement, then you should take reasonable steps to ensure that their working hours do not exceed the limit. This may mean contacting the employee’s other employer to ensure that, between the two of you, the employee is not working too many hours. You need only take reasonable steps, however, and if they employee is not willing to pass information about their other employer to you, then your steps are limited.
Peter Done is managing director of Peninsula Business Services.